The Punjab State Co-operative Supply and Marketing Federation Limited vs N.C. Sethi, Ex Field Officer, The Punjab State Co-operative Supply and Marketing Federation Limited

A.L. Bahri, J.—In the two civil revision petitions, order dated December 21, 1988 passed by Sub Judge 1st Class, Chandigarh in execution of the decree is being challenged. They are being disposed of by one order. Civil Revision No 753 of 1989 has been filed by the Punjab State Cooperative Supply and Marketing Federation Ltd. (known as Markfed), who is judgment-debtor in the execution, whereas Civil Revision No. 1439 of 1989 has been filed by N. C. Sethi, the decree-holder,

N. C. Sethi was employee of the Mark fed. His services were terminated after holding a regular inquiry. The order terminating his services was successfully challenged in the civil Court. The suit was decreed on November 30, 1985. In execution of the said decree, the decree-holder claimed arrears of pay with effect from the date he was placed under suspension i e. July 7, 1980 though order terminating his services was passed on January 21, 1982. Objections to the execution were filed by the Markfed-judgment debtor inter alia alleging that another order terminating the services of Shri Sethi was passed on September 7, 1984 which was not at all challenged by him. Thus, decree holder was entitled only to suspension allowance for the period July 7, 1980 to September 7, 1984. Vide the impugned order, Shri Sethi, the decree holder, was allowed remaining pay and allowances (full wages)with effect from July 7, 1980 to September 6, 1984 along with 12 per cent per annum interest. In the revision petition filed by judgment debtor-Markfed, the claim is that the decree holder was not entitled to full wages as he was placed under suspension and thus he was only entitled to suspension allowance upto September 6, 1984 as his services were terminated on September 7, 1984 by a separate order which was not challenged. On the other hand, in she civil revision petition filed by the decree-holder N. C. Sethi. She claim is that, the petitioner should be allowed full back wages from the date of has order of suspension was passed ignoring order dated September 7, 1984 which was void ab-initio. I have heard counsel for the parties.

The contention of learned counsel for the decree-holder N. C. Sethi is that the Executing Court cannot go behind the decree and once an order of terminating services of Shri Sethi was successfully challenged in the civil suit, he would be entitled to full back wages i. e. full salary in execution of the said decree. The subsequent order, terminating his services, of 1984, cannot be taken into consideration by the Executing Court. This order was not made a defence in the suit vide watch Shri Sethi challenged the order of terminating his services. It has further been argued that after first order terminating the services of Shri Sethi was passed, the Markfed could not pass a second order terminating his services. On the other hand, learned counsel for the Markfed has argued that Shri Sethi was placed under suspension and thereafter two inquiries were initiated against him culminating in passing of two orders of terminating his services. The rules of the Markfed do not prohibit either holding of two separate inquiries or passing of two orders terminating the services. Even if earlier order terminating the services was held to be against the rules, the other order remains in force and Shri Sethi was only entitled to suspension allowance from the date of suspension to the second order terminating his services.

O. W. 1 Mohan Singh appeared on behalf of the Marked and stated that Shri Sethi was placed under suspension vice order dated July 7, 1980 and it was in this case that he was dismissed on September 7, 1984. This statement of fact was not challenged and no evidence to the contrary was produced by the decree-holder. Such a matter was under consideration of this Court in Union of India v. Burma Nand ILR 1980 P & H . 211. which was decided by M. M. Punchhi, J. as his Lordship then was. It was held as under:--

(i) There is no bar for two separate pending enquiries against a public servant, to conclude one after the order. There is BO specific bar for recording two separate orders of dismissal as a result of culmination of two separate enquiries, but at one point of time only one order can operate and not both orders An employee cannot be dismissed twice from service. There can be no dismissal of an already dismissed servant.

(ii) The second question is correlative with the first and an order of dismissal can be passed on the conclusion of the second enquiry as well in the absence of a specific legal bar, The bar is only operative vis-a-vis the operation.

(iii) When the operated order of dismissal arising from an enquiry remains unchallenged, or after challenge has tern upheld and continues to operate a Civil Court, while granting a declaration that an order of dismissal passed in another enquiry was bad and inoperative in law cannot as a co sequence declare the public servant to be continuing is service, simply for the reasons that the subsequent order of dismissal had been set aside be it. In one bread the Court cannot blow not and cold Taking note of the first operated order of dismissal, the Court cannot declare that the second order of dismissal could not be passed in the presence of the first, and yet at the same time cannot set at naught the operation of the first order by declaring the public servant to be in continuity of service as a sequel to the setting aside of the subsequent order of dismissal. The course of two separate enquiries and the respective orders run in two parallel lines and seldom do they meet. Of course they cast shadow on one another, but they operate in their respective spheres, if put into operation; otherwise they remain jest declarate."

The ratio of the aforesaid decision clearly applies to the facts of the case in hand. It is only the date from which the order terminating. the services of Shri Sethi is to operate is for consideration. Per se, it cannot be held that two orders separately initiated on two inquiries could not result in passing orders of terminating the services or dismissal. If one of the orders has been successfully challenged, the same would not take away the effect for the other which was not challenged Although Shri Sethi was suspended on July 7, 1980 and technically his period of suspension ended on the day other of dismissal was passed on January 21, 1982. Since that order was successfully challenged, Shri Sethi continued to be in the service of the Markfed upto September 6, 1984, when another order dismissing him was passed. As per evidence of Mohan Singh O.W. 1. it was in this case that Shri Sethi was placed under suspension on July 7, 1980. Shri Sethi will continue to remain under suspension by operation of law on declaration of order of dismissal dated January 21,1982 to be illegal. The net result would be that Shri Sethi would be entitled to suspension allowance from July 7, 1980 to September 6, 1984 and not full wages, as have been ordered by the Executing Court.

The order dated September 7, 1984 which was not challenged cannot be ignored from consideration, as has been argued by counsel for the decree-holder. Support was sought from the decision of Madhya Pradesh High Court in V. P. Gidroniya v. State of Madhya Pradesh, 1967 S. L. R. 243 on the proposition that on passing of the order of termination, the relationship of master and servant ceased. The ratio of this decision cannot be applied to the facts of the case in hand. Rather, the ratio of the decision in Union of India v. Burma Nand,1 can aptly be applied.

The decree in favour of Shri Sethi is merely declaratory with respect to order of dismissal dated January 21, 1982. It is only in execution that the Executing Court could determine the amount of salary payable to him on such declaration The Executing Court could legitimately take into consideration the other order of dismissal of Shri Sethi dated September 7, 1984 which was not challenged. Orally, it has been argued that in the suit, an application was filed for taking into consideration the said order which was not allowed. Be that as it may, since the Executing Court was to determine the exact amount payable to the decree-holder on setting aside order of dismissal of 1982, the Executing Court could also take into consideration at that stage, the other order of September 7, 1984 vide which services of Shri Sethi were terminated and which was not challenged.

For the reasons recorded above, Civil Revision No. 753 of 1989 is allowed whereas Civil Revision No. 1439 of 1989 is dismissed leaving the parties to bear their own costs. The impugned order of the Executing Court is modified holding that the decree-holder Shri N. C. Sethi in execution is only entitled to suspension allowance during the period July 7, 1980 to September 6, 1984 with 12% interest per annum thereon from September 6, 1984 till payment.